ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 July 2019 DOCKET NUMBER: AR20180007979 APPLICANT REQUESTS: upgrade of his under other than honorable conditions discharge to honorable. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) * DD Form 214 (Report of Separation from Active Duty) FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states, in effect, at the time of his service in the Army, his discharge was based upon one isolated incident. He states he was very young and immature. He shares that he feels he has paid his debt to the military by serving 12 months in confinement at Fort Leavenworth, KS. The applicant states since the time of being out of service (approximately 42 years), he’s been a very productive citizen in the state of Louisiana. He shares that he’s very active with his church and provides motivational speaking to kids affected by drugs and abuse from family members, thereby helping them to become productive citizens. 3. The applicant provides a copy of his DD Form 214, showing in item 9e (Character of Service), he received a under other than honorable conditions discharge. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 10 September 1974. b. He accepted non-judicial punishment (NJP) under the provisions of Article 15 on/for: * 16 April 1975, 24 July 1975, and 30 September 1975 for absenting himself from his unit without authority from 1 to 7 April 1975, 7 to 8 July 1975, and 22 to 23 September 1975 * 12 September 1975, for failing to go to the appointed place of duty at the prescribed time without authority on 8 September 1975; his punishment consisted, in part, of a reduction in rank to private/E-1 c. On 18 November 1975, the applicant was found guilty by a general court-martial in accordance with General Court-Martial Order Number 5, dated 13 December 1975, issued by Headquarters, 5th Infantry Division (Mechanized) and Fort Polk, LA, of: * two specifications of absenting himself from his required place of duty without authority on 3 to 20 October 1975 and 31 October to 3 November 1975 * two specifications of breaking the limitations of his restriction on 3 October 1975 and 31 October 1975 * one specification of wrongfully appropriating a turntable, a pair of speakers, an amplifier, and a 8-track AM-FM radio from another Soldier. The total value of items equal to approximately $825.00 * one specification of breaking and entering to burglarize the room of another Soldier to commit wrongful appropriation d. The court sentenced him to confinement at hard labor for ten months, forfeiture of all pay and allowances, and to be discharged from the service with a Bad Conduct Discharge (no previous convictions considered) Sentence was adjudged on 18 November 1975. e. On 13 December 1975, the convening authority approved the sentence. The record of trial was forwarded to the Judge Advocate General of the Army for review by a Court of Military Review, pending completion of the appellate review. f. On 31 March 1976, the United States (U.S) Army of Military Review stated the military judge erred by serving a copy of the review on the trial defense counsel five days after the convening authority acted on the case. However, it was determined the error was non-prejudicial and did not require corrective action, because the applicant (appellant) pleaded guilty and there was no assertion by either the trial defense counsel or appellate defense counsel that the review was misleading, erroneous, or inadequate. The findings of guilty and the sentence were affirmed. g. General Court-Martial Order 453, dated 17 May 1976, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS provides the applicant’s sentence was affirmed. and the sentence would be duly executed. The accused was confined in the U.S. Army Disciplinary Barracks, Fort Leavenworth, KS. h. Orders 7-4, dated 12 July 1976, issued by Headquarters, U.S. Disciplinary Barracks, Fort Leavenworth, KS, released the applicant from confinement, effective 16 July 1976, due to the expiration of his sentence. i. Orders 8-2, dated 13 July 1976, shows the applicant was discharged from the Regular Army with an effective date of 16 July 1976. The Order listed an Under Other Than Honorable Conditions Discharge Certificate was issued to the applicant. j. The applicant was discharged on 16 July 1976. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations-Enlisted Personnel) paragraph 11-2, with a separation program designator (SPD) code of “JJD” as a result of court-martial for other reasons. He was given a under other than honorable conditions discharge characterization of service. He completed 1 year and 19 days of active service with 288 days of lost time. 5. There is no evidence the applicant has applied to the Army Discharge Review Board for review of his discharge within that board's 15-year statute of limitations. 6. By Regulation (AR 635-200), in effect at that time, states: a. Paragraph 1-17a, an other than honorable conditions discharge certificate will be directed only by a commander exercising general court-martial jurisdiction, a general officer in command who has a judge advocate officer on his staff or by higher authority. b. Paragraph 11-2, a member will be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 7. By regulation (AR 635-5-1 (Separation Program Designators)), in effect at that time, shows the SPD Code of JJD is given to Soldiers as a result of court-martial, for other reasons under the provision of AR 635-200, Chapter 11. 7. In reaching its determination, the Board can consider the applicants petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He accepted responsibility for the events leading to his separation. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the short term of honorable service completed prior to a pattern of misconduct, which included misconduct of a criminal nature, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING X X X DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. Court-martial convictions stand as adjudged or modified by appeal through the judicial process. In accordance with Title 10, U.S. Code, section 1552, the authority under which this Board acts, the ABCMR is not empowered to set aside a conviction. Rather it is only empowered to change the severity of the sentence imposed in the court-martial process and then only if clemency is determined to be appropriate. Clemency is an act of mercy or instance of leniency to moderate the severity of the punishment imposed. 3. Army Regulation 635-200, in effect at that time, sets forth the basic authority for the separation of enlisted personnel. a. Paragraph 1-13a provides that an honorable discharge is a separation with honor. Issuance of an Honorable Discharge Certificate is predicated upon proper military behavior and proficient performance of duty during the member’s current enlistment or period of obligated service with due consideration for the member’s age, length of service, grade, and general aptitude. b. Paragraph 1-13b provides that a general discharge is a separation from the Army under honorable conditions. It is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. The recipient of a general discharge is normally a member whose military record and performance is satisfactory. c. Paragraph 1-13c provides that a discharge under other than honorable condition is an administrative separation from the service under conditions other than honorable. It may be issued for misconduct, for security reasons, or for the good of the service. d. Paragraph 1-17a provides that an other than honorable conditions discharge certificate will be directed only by a commander exercising general court-martial jurisdiction, a general officer in command who has a judge advocate officer on his staff or by higher authority. e. Chapter 11-2 provides that a member will be given a bad conduct discharge pursuant only to an approved sentence of a general court-martial or special court-martial, after completion of appellate review and after such affirmed sentence has been ordered duly executed. 4. Army Regulation 635-5-1, Appendix, in effect at that time, shows the SPD Code of JJD is given to Soldiers as a result of court-martial, for other reasons under the provision of AR 635-200, Chapter 11. 5. The Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records on 25 July 2018, regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. Boards for Correction of Military/Naval Records may grant clemency from a sentencing in a court-martial; it also applies to any other corrections, including changes in a discharge, which may be warranted on equity or relief from injustice grounds. a. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief on the basis of equity, injustice, or clemency grounds, Boards shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official government acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. b. Changes to the narrative reason for the discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20180007979 5 1